UNALACHTIGO BAND OF THE NANTICOKE-LENNI
LENAPE [FN1]
NATION and James Brent

Thomas, Sr., Plaintiffs-Appellants,

FN1.
Incorrectly referred to as "Lenni Lenni" in the complaint.

v.

STATE of New
Jersey and Donald Difrancesco, Defendants-Respondents.

Argued Jan.
4, 2005.

Decided Feb.
28, 2005.

The federal Indian Nonintercourse
Act protects only Indian tribes or nations, and not individual Indians,
and creates a trust relationship between the federal government and American
Indian tribes with respect to tribal lands covered by the Act.
25 U.S.C.A. § 177
.

State courts lacked subject matter
jurisdiction over Native American group's suit claiming that its alleged
descendants' sale of reservation land was void under federal Indian Nonintercourse
Act, such that the group was entitled to specific performance of the colonial
treaty that established the reservation; proper forum for Native American
group to advance its claim under the Nonintercourse Act was exclusively
the federal courts. 25
U.S.C.A. § 177 .

The state courts acquire jurisdiction
over Indian land disputes only to the extent that Congress explicitly
provides; thus, the general rule is that the consent of Congress is required
for state courts to exercise jurisdiction over Indian territory.

Where a dispute involves Indian
trust or restricted property, the State may not adjudicate the dispute
nor may its laws apply.

As long as an Indian party to
litigation claims that the property is Indian trust or allotted land,
the dispute may be characterized as one concerning ownership and possession
of Indian land, and is therefore barred from state court jurisdiction;
the exclusive federal-Indian trust relationship is best maintained by
channeling all disputes about such land into federal court.

Any
contract created between Native American tribe and the State through the
Reservation Trust Act of 1758, which ratified colonial treaty establishing
reservation and barring the sale of reservation land, was rescinded in
1801 when, pursuant to legislative act, both parties to the contract agreed,
for valuable consideration, to sell the reservation land, and thus Native
American group consisting of alleged descendants of the tribe could not
obtain specific performance of the alleged contract.

Parties to a contract may modify,
abrogate, or rescind it; both parties must clearly
assent to the change, and consideration is generally required.

The "primary jurisdiction
doctrine" permits courts to defer to the jurisdiction of an administrative
agency for the resolution of threshold issues, usually of a factual nature,
which are placed within the special competence of the administrative body.
Andrew J. Bayne
, Princeton, argued the cause
for appellants (Bayne Law Group, attorneys; Mr. Bayne, of counsel
and on the brief; Scott
C. Walter and
Brian P. Murphy ,
on the brief).

Plaintiffs, Unalachtigo Band
of the Nanticoke Lenni Lenape Nation and James Brent Thomas,
[FN2] their tribal chairperson
and *333
war chief, claimed to be direct
descendents of those Native Americans who, after 1758, lived on the Brotherton
Reservation in what is now Shamong Township, Burlington County. Plaintiffs
asserted that when their ancestors sold the reservation land in 1801 and
then sold the hunting and fishing rights in 1832, to New Jersey, the sales
violated both (a) the 1758 Treaty with the Colony of New Jersey, which
had established the Brotherton Reservation, and (b) the 1790 federal Indian
Nonintercourse Act, 25
U.S.C.A.
§ 177 ,
which prohibited the sale of Indian land without federal consent. Because
of these violations, **1224
plaintiffs sought from
defendants, State of New Jersey and the then acting governor, in accordance
with the 1758 Treaty, exclusive use, occupancy and control, and the removal
of "all non-Indian[s]" from the reservation.

FN2.
In its brief, the State attacked Thomas's character. We found this
attack to be offensive, unwarranted, and irrelevant.

Plaintiffs appeal from the trial
court's dismissal of their complaint for lack of subject matter jurisdiction
over the state and federal claims and for the absence of a Bureau of Indian
Affairs (BIA) determination that the Unalachtigo Band constitutes an Indian
tribe, directly descendent from those Indians who lived
on the Brotherton reservation. We affirm the trial court's dismissal
of plaintiffs' complaint and conclude that the federal courts have exclusive
jurisdiction over plaintiffs' land claim.

I.

Here are the pertinent facts,
reaching back to the earliest days of New Jersey's history, upon which
plaintiffs rely to establish their claim. In 1758, in exchange for
the cessation of hostilities between New Jersey's native peoples and its
encroaching new citizenry, the Colony of New Jersey entered into the Treaty
of Easton, which was ratified by an Act "[empowering] certain Persons
to purchase the Claims of the Indians to Land in this Colony."
Laws of the Royal Colony
of New Jersey, 1746-1760,
Vol.3, New Jersey Archives, 3rd Series 579 (1982) (hereinafter "Reservation
Trust Act" or "Act").

The Act, which implemented the Treaty, authorized Commissioners to purchase
the rights and claims "of all or any of the Indian
Natives of this Colony"
to the majority of lands South of the Raritan River. Ibid.
In exchange for
the Indians allowing the land to be purchased, the Act authorized the
Commissioners to purchase a 3,044-acre reservation, which became known
as the Brotherton reservation, and to hold the land in trust for the Indians
living south of the Raritan River. Ibid.
The Act specifically
authorized the Commissioners to "take a Deed or Deeds ... in Trust
for the Use of the said Indian Natives, who have or do reside in this
Colony, South of the Rarit[a]n,
and
their Successors, forever." Ibid.
The Act provided,
however, that "it shall not be in the Power of the said Indians,
or their Successors, or any of them, to lease or sell to any Person or
Persons, any Part thereof." Ibid.
The Act further prohibited
non-Indians from settling on the reservation and authorized warrants for
the removal of any non-Indians who settled on the reservation.
Id.
at 579-580. The Act further provided that "no Conveyance ...
by the Indians,
shall prejudice any Right
they now have to hunt on any un[e]nclosed Lands, or fish in the Rivers
and Bays of this Colony." Id.
at 580.

The 3,044 acres were purchased
in Evesham Township, now Shamong Township, in Burlington County. Approximately
100 to 200 Lenni Lenape began living on the Brotherton Reservation in
tranquility, which continued for several years thereafter.

When New Jersey adopted its first
Constitution in 1776, the Constitution continued all laws then in force,
except those inconsistent with the new constitution. The existing
laws, including the Reservation Trust Act, were to "remain in full
force, until altered by the Legislature." N.J.
Const. of 1776 art.
XXI. The Legislature has never formally repealed the Act even
after three revisions of our Constitution.

In 1796, however, the Indians
living on the reservation convinced the Legislature to change the restrictive
ownership provisions of the Act and appoint
new commissioners to "take charge of
the lands, and lease out the same, from time to time," as would be
most conducive to the Indians.
State of New Jersey
v. Wright, 117
U.S.
648, 651, 6 S.Ct.
907, 909, 29
L.Ed.
1021, 1023 (1886) .

The record does not disclose
the circumstances of any reservation leases that may have been executed,
but some five years later, in 1801, a majority of the remaining Native
Americans living on the reservation decided to move to New Stockbridge,
New York, to join their relatives, and petitioned the New Jersey Assembly
to sell their land.

This time, again at the Indians'
request and with their consent, the Legislature passed a law that authorized
the division of the reservation into farms for sale with the proceeds
to be used for the Indians' trip to and settlement in New Stockbridge.
L.
1801, c.
63. Pursuant to
this law, the lands were sold, deeds of conveyance in fee-simple were
given to the purchasers, and a group of Lenni Lenapes moved from the reservation
to New Stockbridge. State
of New Jersey v. Wright, supra,
117 U.S.
at 651, 6 S.Ct.
at 909, 29 L.Ed.
at 1024 .

In 1832, approximately forty
of the remaining Native Americans who were living in New Stockbridge,
asked their elderly chief, a Princeton College graduate, to obtain compensation
from the New Jersey Legislature for their hunting and fishing rights under
the Reservation Trust Act. William J. Allinson, ShawusKuKhKung
(Wilted Grass-Bartholomew S. Calvin)
at 5-6 (The Monmouth County Historical Ass'n 1920).

Upon the Chief's application,
and even though the Legislature believed these rights had previously been
sold in 1801, the Legislature awarded the Native Americans $2,000, which
was considered to be "not large," but an act of "justice
and kindness." Id.
at 7. In thanking
the Legislature for their kindness, the Chief extolled the relationship
between New Jersey and the Native Americans living in the State by explaining
that "[n]ot a drop of our blood have you spilled in battle--not an
acre of our land have you taken but by our consent."
Id.
at 8.

II.

Having explicated the early history
of plaintiffs' claim, we now detail the more modern occurrences leading
to and including plaintiffs' suit. Long after all of the Indians
who had resided in the Brotherton Reservation died, Governor Kean in 1989
acknowledged that the Lenni Lenape "were the people of the Brotherton
Reservation, the first and only Indian reservation ever legally established
in New Jersey." Letter of Recognition from Governor Thomas
H. Kean (Oct. 20, 1989). The record, in this appeal, also contains
certifications by two members of the Unilatchtigo Band of the Nanticoke
Lenni Lenape Nation tracing their lineage to "the Southern Indians
identified as the protected class of New Jersey residents envisioned by
the Treaty and Act of 1758."

In September 1998, plaintiff
Thomas incorporated the Nanticoke Lenni Lenape Tribal Nation
[FN3] as a tribal government.
In March 1999, he advised the BIA, in the
United States Department
of Interior, of the group's intent to seek federal recognition as an American
Indian tribe.

FN3.
The Nanticoke Lenni Lenape Indians of New Jersey, which had been organized
in 1976 and incorporated in 1982, filed a complaint against plaintiffs
in federal District Court alleging unfair competition and service mark
infringement. The Lenni Lenape Indians of New Jersey claimed approximately
900 members, not including Thomas, in five states and representation on
the New Jersey Commission on Native American Affairs (now called Commission
on American Indian Affairs, L.
2001, c.
295, § 1).
The Lenni Lenape Indians of New Jersey alleged that plaintiffs'
activities were causing confusion and mistake, together with damage to
the reputation and good will of the Nanticoke Lenni-Lenape Indians of
New Jersey, Inc. The record does not contain any further information
on this litigation, though we were informed at oral argument that the
dispute has been settled.

In October 2001, plaintiffs sued
the State and acting governor for "specific performance of the Treaty."
Plaintiffs did not sue any of the existing landowners, but alleged
that the State was obligated under the Treaty and Act "to
remove any, and all non-Indians person or persons from [these] tracts
of land."

In
early 2002, at the urging of the trial court, plaintiffs again notified
the BIA that they intended to petition for federal recognition. The
BIA explained that, upon receipt of the documented petition, the BIA's
Branch of Acknowledgment and Research would conduct a "technical
assistance review" by a "research team comprised of a historian,
an anthropologist, and a genealogist." No further BIA proceedings
are in the record.

In dismissing plaintiffs' complaint,
Judge Bookbinder concluded: "[t]his Court does not have subject
matter jurisdiction over the issues raised by this case as they are the
exclusive province of federal court." The judge believed that
though plaintiffs couched their claim under the state common law, the
actual claim is "that the State's purchase of the Brotherton Reservation
is void because the Treaty of Easton established their rights to possession
of the land and the treaty could only be overcome with consent of the
United States." "Thus, [according to the trial court,]
the Plaintiffs' ultimate claim is a violation of the Non-Intercourse Act."
Judge Bookbinder therefore believed that "[p]laintiffs' complaint
[was] based upon a federal right which would not exist absent federal
legislation [, the Nonintercourse Act,] providing protection to Native
Americans."

III.

About three years after New Jersey
ratified the United States Constitution in 1787, the new federal government
enacted the Nonintercourse Act, 25
U.S.C.A.
§ 177 ,
which currently provides in pertinent part: "No purchase, grant,
lease, or other conveyance of lands, or of any title or claim thereto,
from any Indian nation or tribe of Indians, shall be of any validity in
law or equity, unless the same be made by treaty or convention entered
into pursuant to the Constitution." 25
U.S.C.A.
§ 177 .
This statute was initially enacted in 1790, 1 Stat.
137, and "has remained
the policy of the United States to this day." Oneida
Indian Nation v. County of Oneida
(Oneida I), 414 U.S.
661, 668, 94
S.Ct.
772, 777, 39 L.Ed.
2d 73, 79 (1974)
.

Plaintiffs
argue that the 1801 sale in this case was subject to the Nonintercourse
Act, 25 U.S.C.A.
§ 177
, and could not be completed without
federal consent. Therefore, plaintiffs contend that all sales of
reservation land from 1801 and thereafter were void because the federal
government never consented. Under this theory, plaintiffs' right
to possession of the Brotherton Reservation land would be "conferred
by federal law, wholly independent of state law."
Oneida I, supra,
414 U.S.
at 666, 94 S.Ct.
at 777, 39 L.Ed.
2d at 78 .

Because the Nonintercourse Act
is a federal statute, the violation of which, according to plaintiffs,
voids all of the reservation land sales, it would appear that federal
courts have federal-question jurisdiction over this claim.
Ibid.
Plaintiffs may also have a federal common law right to maintain
this action. County
of Oneida v. Oneida Indian Nation
(Oneida II), 470 U.S.
226, 236, 105
S.Ct.
1245, 1252, 84 L.Ed.
2d 169, 180 (1985)
. Consequently, the federal courts
clearly have subject matter jurisdiction over plaintiffs' claim.

Plaintiffs therefore argue that
"[t]he mere implication of a federal law in a state court claim does
not in and of itself abrogate state court jurisdiction." They
cite as support for this proposition, Idaho
v. Coeur d'Alene Tribe,
521 U.S.
261, 275, 117 S.Ct.
2028, 2037, 138
L.Ed. 2d
438, 452 (1997) , which
did state that "[i]nterpretation of federal law is the proprietary
concern of state, as well as federal, courts." Idaho,
however, bears no relationship
to the dispute herein. Idaho
did not involve an application
of the Nonintercourse Act. That case was a common law quiet title
action by which both the State and tribe claimed ownership to the banks
and submerged lands of a lake that was within the boundaries of the tribe's
reservation. That
is very different from our situation where plaintiffs argue that they
are entitled to specific performance of a colonial treaty because of an
1801 violation of the Nonintercourse Act.

IV.

We begin our explanation of why
New Jersey lacks subject matter jurisdiction over this claim by recognizing
that Article 1 of the United States Constitution empowers Congress with
the sole authority to regulate commerce with Indians. U.S.
Const. art. 1, § 8,
cl. 3 .
See Montana
v. Blackfeet Tribe,
471 U.S.
759, 764, 105 S.Ct.
2399, 2401, 85
L.Ed. 2d
753, 758 (1985) ("The
Constitution vests the Federal Government with exclusive authority over
relations with Indian tribes.").

The United States Supreme Court
explained in Oneida
I that "[o]nce
the United States was organized and the Constitution adopted ... tribal
rights to Indian lands became the exclusive province of the federal law.
Indian title ... was extinguishable only by the United States."
414 U.S.
at 667, 94
S.Ct.
at 777, 39 L.Ed.
2d at 79.
It is the very Nonintercourse Act, upon which plaintiffs rely, through
which Congress "asserted the primacy of federal law."
Ibid.

In addition, this federal protection
of Indian occupancy applies in the original thirteen states even though
they, and not the United States, held fee title to Indian land located
within them. 414
U.S.
at 670, 94 S.Ct.
at 778- 79,
39 L.Ed.
2d at 80-81.
The fact that land in the original thirteen states, including New
Jersey, was owned in fee by the State "did not alter the doctrine
that federal law, treaties and statutes protected Indian occupancy and
that its termination was exclusively the province of federal law."
414 U.S.
at 670, 94 S.Ct.
at 779, 39 L.Ed.
2d at 81 .

"The state courts acquire
jurisdiction over [Indian land] disputes only to the extent that Congress
explicitly provides." State
of Alaska, Dept. of Pub. Works v. Agli,
472 F.Supp.
70, 72 (D.Alaska 1979)
. Thus, the general rule
is that the "consent of Congress is required for state courts to
exercise jurisdiction over Indian territory." Hamilton
v. MacDonald, 503
F. 2d
1138, 1150 (9th Cir.1974) .

"The predominance of the
federal government in Indian affairs is nowhere more pronounced than in
the field of Indian property law." Boisclair
v. Superior Court,
51 Cal.
3d 1140, 276 Cal.Rptr.
62, 801 P.
2d 305, 309 (1990)
. Although the federal government
provided in 28
U.S.C.A.
§ 1360(a) ,
that six states (California, Minnesota, Nebraska, Oregon, Wisconsin and
Alaska) were to *341
have jurisdiction over
certain civil actions involving Indians, the jurisdiction was limited
by 28 U.S.C.A.
§ 1360(b)
's prohibition against these six
states assuming jurisdiction over Indian land claims.

Congress specifically provided
that "[n]othing in this section shall authorize the alienation, encumbrance,
or taxation of any real or personal property, ... belonging to any Indian
or any Indian tribe, band, or community that is held in trust by the United
States or is subject to a restriction against alienation imposed by the
United States." 28
U.S.C.A.
§ 1360(b) .
This provision was "simply a reaffirmation of the existing
reservation Indian-Federal Government relationship."
Bryan v. Itasca County,
426 U.S.
373, 391, 96
S.Ct.
2102, 2112, 48 L.Ed.
2d 710, 723 (1976)
. And significantly for
this case, § 1360(b)
applies to land "subject
to a restriction against alienation imposed by the United States,"
such as the Nonintercourse Act.

Under the existing relationship,
no state, even those specifically mentioned in 28
U.S.C.A.
§ 1360(a)
could assume jurisdiction over Indian land claims. Section
1360(b) affirmatively
prohibited state courts from "applying state laws or enforcing judgments
in ways that would effectively result in the 'alienation, encumbrance,
or taxation' of trust property." Bryan,
supra, 426
U.S.
at 391, 96 S.Ct.
at 2112, 48 L.Ed.
2d at 722 .

In 1968, Congress enacted
25 U.S.C.A.
§§ 1321
and 1322
, which authorize states
that did not already have jurisdiction over criminal and civil actions
involving Indians to assume such jurisdiction with the consent of the
tribe affected. New Jersey did not assume Indian jurisdiction under
these laws, but both of these statutes contain a subsection (b), which,
like 28 U.S.C.A.
§ 1360(b)
, and its counterpart for criminal
jurisdiction, 18
U.S.C.A.
§ 1162(b) ,
provides that it shall not authorize the alienation of any real property
belonging to any Indian tribe that is subject to a restriction against
alienation.

Congress has therefore not been
silent regarding jurisdiction over claims involving real property belonging
to Indian tribes that is
subject to a federal restriction against alienation. Congress has
repeatedly announced
that such claims are exempt from state jurisdiction. 28
U.S.C.A.
§ 1360(b) ,
18 U.S.C.A.
§ 1162(b)
, 25
U.S.C.A.
§ 1321(b) ,
and 25 U.S.C.A.
§ 1322(b)
.

We derive from these statutes
a clear understanding that Congress expressly intended to preserve exclusive
federal jurisdiction over claims to Indian land, which is subject to restriction
against alienation. See
McKay v. Kalyton,
204 U.S.
458, 469, 27
S.Ct.
346, 350, 51 L.Ed.
566, 571 (1907)
(state court did not have jurisdiction
to decide who was the proper heir to an allotment of land to an Indian,
located on a reservation, which the United States held in trust). "Where
a dispute involves trust or restricted property, the state may not adjudicate
the dispute nor may its laws apply." Alaska
v. Agli, supra, 472
F.Supp.
at 73
(quoting In re Humboldt
Fir, Inc., 426
F.Supp.
292, 296 (N.D.Cal.1977) ).

It seems to us that plaintiffs'
federal claim turns crucially on the proper construction and implementation
of the Nonintercourse Act, which "does not speak directly to the
question of remedies for unlawful conveyances of Indian land."
Oneida II, supra,
470 U.S.
at 237, 105 S.Ct.
at 1253, 84 L.Ed.
2d at 180.
We are confident that Congress has preempted claims to Indian land
subject to restriction against alienation, and that state court jurisdiction
over such claims could frustrate the federal protection established by
the Nonintercourse Act, which was one of the means by which the federal
government sought "to secure the economic well being and tribal autonomy
of native Americans." Boisclair,
supra, 276
Cal.Rptr.
62, 801 P.
2d at 310 .

"As long as the Indian party
to the litigation claims that the property is Indian trust or allotted
land, the dispute may be characterized as one concerning ownership and
possession of Indian land, and is therefore barred from state court jurisdiction."
Id.
at 314.
"[T]he exclusive federal-Indian trust relationship is best
maintained by channeling all disputes about such land into federal court."
Id.
at 311;
see e.g., Tafflin v. Levitt,
493 U.S.
455, 459-60, 110
S.Ct.
792, 795, 107 L.Ed.
2d 887 (1990)
("Th[e] deeply
rooted presumption in favor of concurrent state court jurisdiction is,
of course, rebutted if Congress affirmatively ousts the state courts of
jurisdiction .... 'by unmistakable implication from legislative history,
or by a clear incompatibility between state-court jurisdiction and federal
interests.' ").

The proper forum for plaintiffs
to advance their Non-intercourse claim is exclusively the federal courts.
Consequently, we conclude that New Jersey lacks
subject matter jurisdiction, and the trial court correctly dismissed plaintiffs'
complaint on that basis.

V.

Although we conclude that New
Jersey lacks subject matter jurisdiction, we address the State claim.
New Jersey has a strong interest in the issues being advanced by
plaintiffs. The Reservation had been held in trust by this State,
and New Jersey's long relationship with the Native Americans living within
its borders precedes the formation of the federal government. Not
only is the interpretation of some of our earliest laws involved in this
dispute, but also, should plaintiffs' claim ultimately succeed, countless
land deals for over two centuries having no connection with any wrong
perpetrated upon Indians, would be jeopardized.

Plaintiffs specifically argue
that the Treaty of 1758, as implemented in the Reservation Trust Act,
remains an enforceable contract between the State and "the Indian
people of New Jersey" because the Act was never repealed. Consequently,
plaintiffs argue that
they are entitled to specific performance of this contract under State
law.

There is United States Supreme
Court support for the Treaty and Act constituting a contract between the
State of New Jersey and those Indians who took up residence on the Brotherton
Reservation. State
of New Jersey v. Wilson,
11 U.S.
164, 166-67, 7 Cranch
164, 166-67, 3
L.Ed.
303, 303-04 (1812) . Besides
establishing the reservation and precluding the Indians from making future
sales or leases of their interests in the reservation land, the
Act also provided that the reservation
land would be exempt from tax. The Court in Wilson
considered whether the
Act constituted a contract and whether the contract was violated by a
subsequent Act by the New Jersey Legislature in 1804, which repealed the
tax exemption.

In considering these questions,
the Court noted that "[e]very requisite to the formation of a contract
is found in the proceedings between the then colony of New Jersey and
the Indians," and concluded that "[t]his is certainly a contract
clothed in forms of unusual solemnity." Ibid.

In defense against plaintiffs'
State contract claim in this case, the State argues that even if the 1758
Act is a contract, it "is no longer 'in force;' its purposes were
completely fulfilled almost two centuries ago. In other words, if
the 1758 Act is 'valid,' so is the 1801 Act that permitted the [sale of
the reservation land]. There is simply nothing left to 'enforce.'
" In essence, the State contends that the contract, which constituted
the 1758 Act, between the Indians and the State was modified by the 1801
sale of the reservation land.

Indeed, that seems to be the
uncontested fact. In 1801, both parties to the contract agreed,
for valuable consideration, to rescind the following two portions of the
contract: (1) providing "it shall not be in the power of the
said Indians, or their
Successors," to sell any part of their interest in the land, and
(2) providing that the Commissioners would hold the reservation in trust
for the Indians and their successors, forever. Laws
of the Royal Colony of New Jersey, supra,
at 579.

Because the 1758 Act was a contract,
under State law the parties may modify, abrogate, or rescind it.
County of Morris v.
Fauver, 153
N.J.
80, 95, 707 A.
2d 958 (1998)
. Both parties must clearly
assent to the change, and consideration is generally required.
Id.
at 96 and 99-100, 707 A
.2d 958;
Oscar v. Simeonidis,
352 N.J.Super.
476, 484, 800
A. 2d
271 (App.Div.2002) . There
is no question here that the Lenni Lenape not only assented to the sale
of their land, but requested
it, and the record reflects that they received full value, without any
deception or overreaching.

"[W]hen, at the request
of the Indians, the land was sold to other parties in fee-simple absolute,
the abnormal qualities of Indian tenure were extinguished."
State of New Jersey
v. Wright, supra,
117 U.S.
at 652-655, 6 S.Ct.
at 910-911, 29
L.Ed.
at 1023 (1886) . The
Act of 1801, L.
1801, c.
63, in effect rescinded
the conflicting provisions of the 1758 Act, and modified the land rights
associated with the reservation to permit the reservation to be subdivided
and sold to non-Indians.

The provisions at issue do not
exist any longer; at least under State contract law without considering
the impact of the federal Nonintercourse Act. Only
by application of the federal restraint on the 1801 reservation sale,
does plaintiffs' specific performance State claim achieve potential viability.
In the absence of any federal restraint, plaintiffs would not be
entitled to specific performance of the 1758 Act.

VI.

We also believe that before proceeding
in the federal court on its Nonintercourse Act claim, plaintiffs should
first obtain a determination from the BIA that the Unalachtigo Band constitutes
an Indian tribe directly descendent from the tribe of Indians who lived
on the Brotherton Reservation. See
Golden Hill Paugussett
Tribe, supra, 39
F. 3d
at 56 .

The primary jurisdiction doctrine
permits courts to defer to the jurisdiction of an administrative agency,
such as the BIA, for "the resolution of threshold issues, usually
of a factual nature, which are placed within the special competence of
the administrative body." Golden
Hill, supra, 39
F. 3d
at 58-59. Such
deference fosters "consistency and uniformity in the regulation of
an area which Congress has entrusted to a federal agency; and [also
permits] the resolution of technical questions of facts through the agency's
specialized expertise, prior to judicial consideration of the
legal claims."
Id.
at 59;
see also Alliance
For Disabled In Action, Inc. v. Continental Props.,
371 N.J.Super.
398, 408, 853
A. 2d
328 (App.Div.2004) ;
Richardson v. Standard Guar.
Ins. Co., 371
N.J.Super.
449, 475, 853 A.
2d 955
(App.Div.2004) .

In this case, there is no question
that the BIA has experience and expertise regarding the threshold issue
involved in this case. Golden
Hill, supra, 39
F. 3d
at 59-60. The Unalachtigo
commenced proceedings in the BIA by announcing their intent to file a
petition for recognition. Whether plaintiffs are the Indian tribe
descendents of the beneficiaries of the Treaty of 1758 is a fact issue
within the special competence of the BIA.

Deferral to the BIA will also
promote uniformity and consistency. Plaintiffs' petition will be
reviewed in conjunction with the petitions of other New Jersey Indian
groups. The Nanticoke Lenni Lenape Indians of New Jersey, Inc.,
for example, have also advised the BIA of their intention to file a petition
for federal recognition.
[FN4] The BIA has
already denied recognition to New Jersey's Ramapough Mountain Indians
because the Ramapough failed to document their tribal descent from the
Lenni Lenape. Ramapough
Mountain Indians v. Norton,
25 Fed. Appx.
2, 3, 2001 WL
1699413, *1 (D.C.Cir.2001)
, cert.
denied, 537
U.S.
817, 123 S.Ct.
87, 154 L.Ed.
2d 22 (2002) .

FN4.
The record does not reflect whether New Jersey's Powhatan Renape Nation
has also sought recognition from the BIA. Two members of the Powhatan
Renape Nation, Nanticoke Lenni Lenape Indians, and the Ramapough Mountain
Indians, serve on New Jersey's Commission on American Indian Affairs.
N.J.S.A.
52:16A-53 .

Because we have chosen to affirm
the dismissal of plaintiffs' complaint, however, notwithstanding the foregoing
observations, we elect not to decide the primary jurisdiction issue and,
instead, defer to the federal interest in deciding that issue. Should
plaintiffs pursue their claim in federal court, the primary jurisdiction
question will be a concern of that forum, which should have the opportunity
to decide the issue without interference by this court.
Accordingly, we expressly decline to decide the primary jurisdiction
issue.